#### In re Petition of C. F. ELKS v. COMMISSIONERS OF PITT COUNTY.

(Filed 3 March, 1920.)

1. Evidence — Irrelevant—Without Prejudice — Appeal and Error — Trials.

The admission of evidence which is neither relevant nor prejudicial to appellant, and which is not responsive to the question, or excepted to, will not he held for reversible error on appeal.

3. Counties — Road Commissioners — Roads—Highways—Condemnation— Damages — Location of Road — Discretion.

Where a part of the owner’s lands has been taken by the county in straightening a highway, and he is left with the use of the old road running near his dwelling on another part of his land, he is not entitled to having considered by the jury, in estimating his damages, the fact that the new road did not run by his dwelling, the location of the new part of the road being a matter entirely within the discretion of the proper county authorities.

3. Same — Diminution of Damages — Evidence—General Benefits — Statutes Constitutional Law.

The usual rule that in arriving at the damages to lands of the owner in taking them for a quasi-public use, as relating to railroads and the like, only special benefits may he considered in diminution does not always apply, especially to counties and cities as to streets, public roads, and highways, for it is within the discretion of the Legislature to allow in all or in any case, as a deduction not only those benefits special to the lands so taken, but also those general to the lands in that vicinity, and a statute allowing the consideration of such general benefits is constitutional and valid. Sec. 8, ch. 714, Laws 1905.

*2424. Appeal and Error — Objections and Exceptions — Evidence—Counties— , Roads and Highways — Damages.

Where the commissioners of a county are sued by the owner of lands for damages for taking a part thereof for a public road or highway, and the defendants do not appeal from an instruction of the court that the jury could only consider in diminution the special benefits to the land, when under a statute applicable they could also have considered the general benefits to lands in that vicinity, they cannot on appeal take advantage of the error so committed.

Appeal by plaintiff from Kerr, J., at September Term, 1919, of Pitt.

This was a proceeding by plaintiff under sec. 8, ch. 714, Laws 1905, asking that a jury be appointed to assess damages caused to his land by the county taking 7/10 of an acre of land in the construction of a public road. The jury was duly appointed, and made its report allowing defendant $175 damages. Without waiting for the commissioners to take action, the plaintiff appealed to the Superior Court. At the trial in that court the jury awarded the plaintiff $225 damages, and he appealed to this Court.

Julius Brown for plaintiff.

Skinner & Whedbee for defendant.

Clark, C. J.

The witness Tyson had testified as to the damages to the plaintiff’s land, and on cross-examination he was asked if he had claimed any damages for the road going through the witness’s land, to which he answered: “I would have done so if I had thought it would have been of any use.” The witness owned adjoining land, and the question was competent as tending to shake his testimony as to the damage the plaintiff had sustained. We cannot see that the plaintiff sustained any harm from the answer, which at most was merely irrelevant.

Another witness was asked on cross-examination: “What value is the little piece- of land ?” to which he replied, “I do not consider that little piece of much value to my father unless he could get more.” While the answer may not have been very responsive, there was no motion to strike it out, and it does not appear that any harm accrued that would justify a new trial.

Exception 3. The court charged the jury: “If you find the plaintiff is damaged, you will not take into consideration the fact that his home is off the road, because the action was not brought by reason of his house being cut off of the road, but by reason of the highway commissioners taking this portion of the land through which the road passes.” The plaintiff’s evidence discloses that his house was not upon lot No. 4, or lot No. 1, but was on an entirely different tract of land situated on the north side of the old county road, as shown on the map. The plaintiff *243still bas tbe old county road to use as be did previously to laying out tbis road, except tbat be bimself bas built a tobacco barn across it, as shown on tbe'map, and in tbat respect be can recover no damage by reason of laying out tbe new road. If be could, then any other person living four or five miles or further from tbe new road could contend tbat they were entitled to damages because tbe new road was not constructed by their borne. Tbe county commissioners simply did not see fit to build a new road along tbe line of tbe old road by tbe plaintiff’s residence, but tbe plaintiff still bas tbat old road so far as be sees fit to use it.

Tbe fourth exception is tbat tbe court directed tbe jury to allow tbe plaintiff: “What would be a fair compensation for bis land, taking into consideration tbe value of bis land immediately before, and tbe value of bis land immediately after, and tbe difference in value would be tbe damages be bas sustained by reason of tbe road running through bis land.” Sec. 8, cb. 714, Laws 1905, under which tbis proceeding was begun, provides: “Said jury, being duly sworn, in considering tbe question of damages, shall also take into consideration tbe benefits to tbe owner of said land, and if such benefits shall be considered equal to or greater than tbe damages sustained, then tbe jury shall so declare and report in writing its findings to tbe board of county commissioners for revision or confirmation.”

In Lanier v. Greenville, 174 N. C., 317, tbe Court said: “We have adhered to tbe rule tbat in tbe assessment of damages for land taken for public improvement tbe measure of damages is tbe difference in value before and after taking. We are less inclined to change tbe rule since it was held in Miller v. Asheville, 112 N. C., 768, tbat it was within tbe power of tbe General Assembly to provide by statute tbat damages should be reduced not merely by benefits special to tbe plaintiff, but by all tbe benefits accruing to him, either special or in common with others.” In Miller v. Asheville tbe Court held constitutional an act providing tbat all benefits should be considered in reducing damages, notwithstanding tbe fact tbat tbe property bad been taken by tbe city prior to tbe enactment of tbe statute, and notwithstanding tbat proceedings for tbe assessment of damages bad been instituted before tbis statute was passed.

Tbe counsel for tbe commissioners contend tbat under tbe language of tbis statute tbe county was entitled to have set off against tbe damages assessed not only tbe special benefits to tbe owner of tbe land, but tbe benefits which actually enhanced tbe market value of tbe property, although they are common to other property in tbe vicinity. We cannot consider tbis contention, for tbe defendants are not appealing, and tbe plaintiff cannot complain tbat tbe benefits set off were restricted to tbe special benefits as laid down in Lanier v. Greenville, supra.

*244Exception 5 is that the court charged the jury: “The defendants contend that they offered evidence that the plaintiff has not been damaged as much as $600; and that you should find that the special benefits have accrued to him in that this special piece of property is more valuable now than before the road was built; the defendant contends that it is a nice wide public road, and puts his land in contact with the public; for the people who want to get to the county-seat and that this ought to be taken into consideration, and the court charges you that if you find that a special benefit has accrued to this land by reason of this road being-put there, then you might consider that in determining what damages he has sustained, if you find any special benefits have accrued to this land.”

Exception 6 is to a charge of like nature. As already stated, these charges are in accordance with the general rule which has obtained in this State in the absence of legislation restricting or enlarging the nature of the benefits to be deducted, and the plaintiff cannot complain.

Exception 7 is to a like charge by the court: “As I said a tnoment ago, if you find any special benefit has accrued to the plaintiff by reason of the building of the road through his property, you can consider it in determining the.amount of damages you may arrive at, but if no special benefit has accrued to him, and if the benefit he gets is common to adjacent landowners, then you will not consider that.” This charge was correct under the general rule.

The last exception, except those purely formal, is to the following-charge: “The jury will not take into consideration the fact that the plaintiff’s house was left off the road, and is not now on the road; this proceeding is to procure damages for and on account of the taking of the land, part of those two lots which were necessary to build this road, and the fact that this house and home is left off the public road you will not take into consideration at all, but only take into consideration the damage by reason of the taking of the land from these two lots of land, and say what you find the damage to be.”

This has already been discussed under the third exception. The county was under no contract with the plaintiff not ’to lay out a new public road, in order to make a new and shorter route needed for the public convenience. In doing this, the county did not cut off the plaintiff from the public road, upon which the plaintiff’s house stood. The principle of public administration is the “greatest good for the greatest number,” and a new, better, and shorter road being needed for the public convenience, the plaintiff could not complain that it was not built over the old route. The road .on which this house stands remains where it was, and if the plaintiff does not use it, and has built a tobacco barn across it, as it appears, .is because he finds it more convenient to get to the new road by a different route.

*245In view of tbe great increase in tbe mileage of public roads in construction, or in contemplation, and that neither tbe State nor tbe Federal Government will permit any part of tbeir appropriations for roads to be used in payment for any part of damages for rights of way, it follows that all such damages fall upon tbe county alone, and it is a matter of great moment what method should be adopted in allowing deductions from such damages for benefits accruing to tbe landowner.

It seems that tbe general rule prevailing throughout this country is that laid down in Traction Co. v. Vance, 9 L. R. A. (N. S.), 781; S. c., 225 Ill., 270. “In assessing damages for injury to land, not taken in a proceeding to secure a railroad right of way, benefits may be set off which actually enhance the market value of the property, although they are common to other property in the vicinity.” In proceedings to condemn land for the use of a railway, which is not entirely for public benefit, but in part at least for private emolument, the rule seems to be generally settled either that no benefit shall be deducted, or, at least, only those that are of special benefit to the owner, not including the enhancement in the value of his land, which accrued to him in common with others in that vicinity. But when the condemnation is for a public benefit, as the widening of a street, as in Miller v. Asheville, supra, or for the construction of a public road, or other purposes of a purely public nature, solely for the general benefit, the usual rule seems, as in the case above quoted from 9 L. R. A. (N. S.), 781, to reduce the damages by all the benefits accruing to the landowner, whether special or general.

The distinction seems to be that where the improvement is for private emolument, as a railroad or water power, or the like, being only a qucisi-public corporation, the condemnation is more a matter of grace than of right, and hence either no deductions for benefits are usually allowed, or only those which are of special benefit to the owner, but where the property is taken solely for a public purpose,.the public should be called upon to pay only the actual damages, after deducting all benefits, either special or general.

In 2 Lewis Em. Dom., secs. 687-689, the different methods are stated to be five in number, but, in fact, they can be reduced to three, i. e.:

1.' Condemnations in which there are no deductions allowed at all for benefits.

2. Where deductions are only allowed for special benefits accruing to the owner.

3. Where deductions are allowed for benefits, both special and general.

This matter is discussed fully by Connor, J., in R. R. v. Platt Land, 133 N. C., 272-274, where he shows that all three methods have obtained in this State, either by amending the general statute or the charters in special cases, citing Miller v. Asheville, 112 N. C., 759, where by tbe *246terms of tbe statute (Pr. Laws 1891, cb. 135, sec. 16) it was made tbe duty of tbe jury in assessing damages for opening or widening streets to consider “All benefits special to said land, and also all benefits, whether real or supposed, which tbe parties may derive from tbe construction of said improvements, whether it be common to other lands, or only special to their own.” This latter rule is held in the Hlinois case above cited to obtain generally in this country when the assessment for damages is for purely public purposes.

The changes of the statute in this regard in North Carolina stated by Jude Cormor in R. R. v. Platt Land, supra, is more fully set out in the note to Traction Co. v. Vance, 9 L. R. A. (N. S.), at page 806. It appears therefrom that “the early rule in this State was that special •benefits might be set off against the value of the land taken for public use, and against damages for the remainder; that‘this rule was abrogated by statute and afterwards restored by statute.”

In Freedle v. R. R., 49 N. C., 89, it was held that only such benefits could be deducted as were peculiar to the owner of the land taken and not general benefits, such as increased facilities for getting to market, the increased prosperity of the country, and the consequent growth in the value of real estate — such benefits as were common to all. The same rule was held in Asheville v. Johnson, 71 N. C., 398; R. R. v. Wicker, 74 N. C., 220; Haislip v. R. R., 102 N. C., 376, but in Miller v. Asheville, 112 N. C., 759, where a statute was passed after the proceeding was begun providing that general benefits as well as special benefits were to be deducted from the assessment of damages in opening or widening streets, the Court held that this was a mere change of remedy and the act was sustained. All the above decisions were reviewed, and the changes of the statute set out in R. R. v. Platt Land, 133 N. C., 266, in which the Court sustained Miller v. Asheville, which held (p. 768) that it was a matter resting in the discretion of the Legislature, which “could reduce the damages by all the benefits accruing to the plaintiffs, or only by those special to the plaintiff, since it conferred the right of eminent domain. . . . Compensation was made when the balance was struck between the damages and the benefits conferred. To that, and to that alone, the owner had a constitutional and vested right. The Legislature, in conferring upon a corporation the exercise of the right of eminent domain, could, in its discretion, require all benefits, or a specified part of them, or forbid any of them to be assessed as offsets against the damages. This was a matter which rested in its grace, in which neither party had a vested right, and as to which the Legislature could change its mind always before rights were settled and vested by a verdict and judgment.”

This decision is followed by Hoke, J., in Bost v. Cabarrus, 152 N. C., 536, and Allen, J., in Lanier v. Greenville, 174 N. C., 317, affirming *247 Miller v. Asheville, supra, as to tbe power of tbe Legislature to authorize tbe deduction of general as well as special benefits from tbe damages assessed, but bolding that if tbe statute does not so provide, only tbe special benefits will be deducted.

Owing to tbe importance of tbe subject, and its full discussion in tbis case, we bave traced tbe bistory of tbe rule. In tbe damages assessed, we find

No error.